Opinion
6 Div. 357.
March 7, 1933.
Appeal from Circuit Court, Jefferson County; John Denson, Judge.
Action on policies of life insurance by R. H. Tolliver against the American Standard Life Insurance Company. From a judgment for plaintiff, defendant appeals.
Reversed and remanded.
Locke Creel and Frederick V. Wells, all of Birmingham, for appellant.
Pleadings upon demurrer must be construed most strongly against the pleader. Amer. Ry. Ex. Co. v. Reid, 216 Ala. 479, 113 So. 507; Nunnally Co. v. Bromberg, 217 Ala. 180, 115 So. 230. For a letter to be received in evidence as an admission, it must be affirmatively shown to have been written by the party against whom it is offered, or by some one for whose act he is shown to be responsible, either originally or by ratification. 22 C. J. (Evi.) § 340; White Trunk, etc., v. Brantley, 16 Ala. App. 37, 75 So. 182. An alleged statement of an alleged agent is not admissible to show agency in the absence of proof of authority. Burch v. Ingham Land Co., 212 Ala. 204, 102 So. 19. The mere fact that one is president of a corporation does not raise any implication of law, nor permit any inference of fact, that he is clothed with authority to make contracts in the name of the company. Sheip v. Baer, 210 Ala. 231, 97 So. 698, 700. Before secondary evidence is admissible, the original or primary evidence must be accounted for. Sorrell v. Scheuer, 209 Ala. 268, 96 So. 216. Where plaintiff's evidence, as a matter of law, is not sufficient to sustain a verdict, the trial court on timely motion should exclude same. Dorough v. Ala. G. S. R. Co., 221 Ala. 305, 128 So. 602. The jury has no right to render a verdict based on mere speculation and conjecture; the verdict must be sustained by the evidence. Miller-Brent Lbr. Co. v. Douglas, 167 Ala. 286, 52 So. 414; Amer. C. I. P. Co. v. Landrum, 183 Ala. 132, 62 So. 757.
G. M. Edmonds, of Birmingham, for appellee.
If there was any error in overruling demurrer to the complaint, it was cured by the evidence. Supreme Court Rule 45, 4 Code 1923, p. 895; Amer. Ry. Ex. Co. v. Reid, 216 Ala. 479, 113 So. 507. Granting, for the sake of the argument only, that the letter was secondary evidence, the trial court had the discretion to admit or reject it Sorrell v. Scheuer, 209 Ala. 268, 96 So. 216. The president of a domestic insurance company is usually its general manager. He was authorized to issue the letter introduced in this case, which was not the making of a contract. Sheip v. Baer, 210 Ala. 231. 97 So. 698; Thompson on Corporations, § 1629. The defendant ratified the acts of its president by receiving policies, premium book and premium, and proof of death. Ga. Cas. Co. v. Massey, 201 Ala. 601, 79 So. 33; So. L. T. Co. v. Gissendaner, 4 Ala. App. 523, 58 So. 737. The jury had the right to infer that the company spoken of by the plaintiff is the one which has pleaded in this case. Dearing v. Smith, 4 Ala. 432.
The complaint was in two counts, claiming in each amounts due on a policy of insurance issued by Birmingham National Life Insurance Company, the liability under which being assumed by this defendant.
There were demurrers to the complaint, but, as we see the record, there is no necessity for us to pass upon the demurrers further than to say that each count stated a cause of action against this defendant and the trial court by its rulings, and its charges presented the true issues to the jury and required a finding of any matter omitted in the complaint as a condition to recovery. This being the state of the record, no prejudice results from any error there might have been in overruling the demurrer. Southern R. Co. v. Dickson, 211 Ala. 481, 100 So. 665; Central of Ga. Ry. Co. v. Purifoy, 226 Ala. 58, 145 So. 321.
The policies declared on were issued by Birmingham National Life Insurance Company, a corporation. Stamped on the policy with a rubber stamp was a statement that: "The Mutual Savings Life Ins. Co. of Decatur, Ala., assumes all liability on this policy on and after July 1, 1930," and there was evidence tending to prove that after July 1, 1930, the Mutual Savings Life Insurance Company continued to collect the monthly premiums through its agent, a man by the name of Card. The "receipt card" issued to insured by the Birmingham National, and continued by the Mutual Savings, and by plaintiff introduced in evidence discloses that the last payment received by the company was December 16, 1930, prior to the death of insured on January 14, 1931. The policy provides for a forfeiture if at the time of death the insured is four weeks in arrears in the payment of premiums. To offset this lapse, the beneficiary testified that on January 13, 1931, the day before the death of insured, he paid to some one on the roadside $1.05 for the insured. He does not give the name of the man to whom he claims to have made payment, but designates him as a "New man * * * with the one who was the superintendent — I mean the inspector." This witness did not have the payment entered on the receipt card, but claims to have taken a receipt which was not produced.
There was no evidence that the "New man" to whom payment is claimed to have been made was the agent of this defendant, or that the superintendent or inspector was in any way connected with this defendant.
Plea two raised the question of a forfeiture under the terms of the policy for and on account of a failure to pay premiums, and upon the foregoing evidence this question was submitted to the jury. Under our scintilla rule, the question of this payment to somebody was perhaps properly so submitted, but there is an entire lack of evidence tending to prove that this payment on January 13, 1931, was made to this defendant or any of its agents.
Under the plea of the general issue, the burden was on plaintiff to prove by legal evidence the assumption by defendant of liability under the policies sued on. To do this plaintiff introduced, over timely objection and exception of defendant the following letter:
"American Standard Life Insurance Company "Thos. W. Wert, President "Birmingham, Alabama "December 6, 1930
"To the Policy holders of the Mutual Savings Life Insurance Company:
"The American Standard Life Insurance Company of Birmingham has purchased the Birmingham business of the Mutual Savings Life Insurance Company, and includes the business purchased by them of the Birmingham National Insurance Company and Dixie National Insurance Company, and assumes the liabilities on all policies that are in force in the Mutual Savings Life Insurance Company.
"The American Standard Life Insurance Company has a capital and surplus of more than one million dollars and is an Old Line Legal Reserve Company having more than six million dollars insurance in force. Anyone that might try to discourage you by misrepresentation is only doing so in a spirit of selfishness.
"The offices of the Mutual Savings Life Insurance Company have been moved to our office, 703 Comer Building, corner of 21st Street and Second Avenue. Telephone number 32457.
"Yours very truly, "American Standard Life Insurance Co., "Thos. W. Wert, President."
The plaintiff testified that this letter had been handed him by Mr. Card, and further testified that Card was the man who took the place of Mr. Jones. What connection Jones or Card had with defendant does not appear, and there is no evidence tending to prove the genuineness of the signature or that the letter was the act of a duly authorized officer of defendant company. Without evidence tending to prove its authority, the letter should not have been allowed in evidence. 22 Corpus Juris, § 340, p. 304; White Trunk, etc., Co. v. Brantley, 16 Ala. App. 37, 75 So. 182; Lenhart v. Bean, 181 Iowa, 85, 161 N.W. 464.
With this letter out there was no evidence to connect this defendant with the policies sued on, and the defendant was entitled to the general charge.
For the errors pointed out, the judgment is reversed, and the cause is remanded.
Reversed and remanded.